Sunday, July 17, 2016

The art is not the artist! Above-GL sentence based on music video is substantively unreasonable.

Was the person who painted this picture inclined towards violence? Does this painting prove that he liked violence? Caravaggio certainly had his share of trouble with the law, but nobody seriously believed that his Judith Beheading Holofernes indicated any murderous intent on his part.﻿

Jumping ahead a few centuries, let's ask the same questions about the images in this music video:

Are the performers in this video inclined towards violence? Does this video prove that they like violence? A district court judge in Puerto Rico thought so. And thus the judge imposed a 96-month sentence on one of the performers---a gun defendant whose advisory guideline range was 24-30 months. According to the judge, this video was "objective evidence" that the defendant's illegal possession of an automatic weapon "was not a mistake." The video was "visual confirmation" of the defendant's "inclination as to violence, his liking to violence.""[T]his is an individual who makes a life . . . not only carrying this kind of firearm, but also preaching . . . the benefits of having this kind of firearm, the use you can give to them, expressing how you kill people, expressing how you don't care about human life."The First Circuit reversed, finding the sentence substantively unreasonable:

"In this case, the sentencing court confused the message with the messenger. That led the court to blur the line between the artistic expression of a musical performer and that performer's state of mind qua criminal defendant."

"Implicit in this rationale is the assumption that the lyrics and music videos accurately reflect the defendant's motive, state of mind, personal characteristics, and the like. But this assumption ignores the fact that much artistic expression, by its very nature, has an ambiguous relationship to the performer's personal views.That an actress plays Lady Macbeth, or a folk singer croons "Down in the Willow Garden," or an artist paints "Judith Beheading Holofernes," does not, without more, provide any objective evidence of the performer's motive for committing a crime, of his personal characteristics (beyond his ability to act, sing, or paint, as the case may be), or of any other sentencing factor."For a deeper dive into the unjustness of treating violent lyrics and imagery in modern hip-hop and other music as autobiography, check out Killer Mike's (and other rap scholars') amicus brief on the history and artistic legitimacy of rap.